R v B, RP - [2021] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, RP
[2021] SADC 9
Ruling of his Honour Judge Stretton
9 February 2021
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - UNRELIABLE AND HOSTILE WITNESSES
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
The prosecutor assessed that a potential prosecution witness was not a witness of truth and consequently would not be called by the prosecution. The defence applied pursuant to Rule 49 that the court request the prosecution reconsider their decision not to call the witness, and that if the prosecution do not call the witness the prosecution be stayed.
The High Court in R v Apostilides makes clear that the prosecution decision whether or not to call a witness is unreviewable at trial level. The trial judge may ask why and suggest the decision be considered. The prosecution is however not required to provide reasons to the trial judge or the defence. If reasons are given, a trial court should not adjudicate on the sufficiency of those reasons. The prosecution obligation to call all relevant and admissible evidence does not extend to witnesses who the prosecution regard as not witnesses of truth. The prosecution obligation to call all relevant and admissible evidence is an adjunct of the prosecution role and is not a duty to the accused reviewable at trial and accordingly, the decision may only be challenged on appeal on the basis that a miscarriage of justice was caused. On appeal, the issue will not be whether the decision was correct at the time it was made, but whether when the trial is assessed in review, a miscarriage of justice ensued because the witness was not called by the prosecution.
The DPP stance that the prosecutor allocated to the trial is legally required make the witness assessment personally is not necessarily correct. On analysis, Apostilides is not authority for that proposition. That stance is now also unnecessary given the statutory independence of the DPP, is out of step with current prosecutorial decision making practice and modern managerial accountabilities, and when combined with the practice of regularly changing prosecutors and not allocating a prosecutor until shortly prior to trial results in a number of significant practical problems, repetition of work, uncertainty and potential unfairness for both the prosecution and to the defence.
Authority to the effect that the prosecution must call a witness they do not believe is a witness of truth if they cannot conclusively establish that the witness will not be a witness of truth potentially strikes at one of the foundational elements of the adversarial trial process and should be reconsidered.
Held:
1. It is not appropriate to adjudicate on the sufficiency of the prosecution’s basis not to call a witness.
2. There is no basis to request the prosecution reconsider their decision. The prosecution is not requested to do so.
3. There is no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v B, RP

Details

AGLC: R v B, RP [2021] SADC 9
Case: [2021] SADC 9
Decision Date: 9 February 2021

CaseChat Overview and Summary

The case before the court involved the respondents, R v B, RP, where the legal team representing the respondents sought to challenge the decision of the prosecution not to call certain witnesses to testify. The respondents argued that the decision was flawed and should be reviewed, potentially leading to a stay of the proceedings. The court was tasked with determining whether the prosecution's decision not to call the witnesses was justified and if there was any basis for the requested stay.

The primary legal issue the court needed to address was the extent to which the prosecution's decision not to call certain witnesses could be reviewed by the court. The respondents argued that the prosecution's decision was unreasonable and that the court should intervene. The court also needed to consider whether there was any merit in the respondents' request for the prosecution to reconsider their decision, and if so, whether this request could lead to a stay of the proceedings.

The court held that it was not appropriate to adjudicate on the sufficiency of the prosecution’s basis for not calling a witness, as this would involve a level of scrutiny that was not warranted. The court emphasised that the decision to call or not call witnesses rested with the prosecution, and it was not the court's role to second-guess these decisions unless there was clear evidence of an error of law. Furthermore, the court found that there was no basis for requesting the prosecution to reconsider their decision, and thus, the prosecution was not requested to do so. The court also ruled that there was no basis for a stay of the proceedings as requested by the respondents. The court clarified that the process for requesting a reconsideration by the prosecution was intended to be summary and conducted on the papers only, without the need for a full hearing. The court also noted that the decision in R v Apostilides did not support the proposition that the prosecutor must personally assess the credibility of a witness and decide whether they should be called.

In conclusion, the court dismissed the respondents' application for a stay of proceedings and rejected their request for the prosecution to reconsider their decision not to call certain witnesses. The court held that the prosecution's decision was not subject to judicial review and that there were no grounds for the requested stay. The court's decision affirmed the prosecutorial independence in making decisions regarding the calling of witnesses in criminal proceedings.

Orders

Orders of the court

1. It is not appropriate to adjudicate on the sufficiency of the prosecution’s basis not to call a witness.

2. There is no basis to request the prosecution reconsider their decision. The prosecution is not requested to do so.

3. There is no basis for a stay. The prosecution is not stayed.

4. The process of asking the court to request the prosecution reconsider their decision envisages a summary process conducted on the papers only.

5. R v Apostilides is not authority for the proposition that the prosecutor allocated to the trial must personally assess the witness’ credibility and decide whether they be called.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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